This matter came before the Utah State
Tax Commission pursuant to the Rules of Administrative Procedure and the
Administrative Procedures Act for formal adjudicative proceedings on the
XXXXX.James E. Harward, Presiding
Officer, heard the matter for and in behalf of the Tax Commission.XXXXX appeared representing the
Respondent.XXXXX appeared representing
XXXXX.XXXXX was also present.

Evidence was taken, arguments were
made and the matter ­submitted to the Presiding Officer for his recommendation.
Based upon the recommendation of the
Presiding Officer and the facts and evidence presented at the hearing, the Tax
Commission makes its:

FINDINGS OF FACT

1.The tax in question is the illegal drug stamp tax.

2.The period in question is XXXXX.

3.On said date the Petitioner was stopped by the XXXXX County Sheriff's
office in a XXXXX truck license plate number XXXXX at a routine traffic stop in
conjunction with a drivers license roadblock check.

4.The vehicle was owned by the Petitioner.

5.Subsequent to the stop and as a result of the search of the vehicle, the
sheriff's office located XXXXbehind
the drivers side or the vehicle which contained approximately XXXXX tablets
which were stipulated as being XXXXX.

6.No drug stamps were affixed to the XXXXX.

7.A brief case located in the Petitioner's vehicle contained money and was
the property of the Petitioner.

8.At the routine traffic stop, the officers were suspicious of the
vehicle.When approaching the drivers
side, they smelled the odor of XXXXX. They then requested that the vehicle pull
to the side of the road.At the side of
the road, the Petitioner then handed over to the officer a baggie and a roach
apparently containing XXXXX.Thereafter
the vehicle was searched for any other contraband or illegal drugs.During the course of the search, the XXXXX
were located.

9.The sheriff's office stopped all cars and vehicles at the roadblock.

10.The Respondent assessed a tax and penalty according to state statute of
$$$$$ tax and $$$$$ penalty.

12.Under the terms of the statute, the term dosage unit is equivalent to
one pill.

13.XXXXX such as these are sold as pills and not by weight.

14.The Petitioner's statement that the shave kit did not belong to him is
selfserving and given little weight.

CONCLUSIONS OF
LAW

1.The taxes imposed upon a controlled substance as set forth in Utah Code
Ann. ' 59‑19‑103 et.
seq. in the sum of $$$$$ for each XXXXX dosage units of a controlled substance
that is not sold by weight.

2.A stamp must be purchased to evidence the payment of the tax imposed by
the Utah Code.Failure to affix the
stamp or to purchase the stamp results in an imposition of the tax plus a civil
penalty of 100% of the tax. (Utah Code Ann. ' 59‑19‑106.)

3.The Tax Commission is bound to follow the state statutes.(State Tax Commission vs Wriqht 596
Pacific Second 634, 636 Utah 1979.) However, the Commission is not a judicial
body established under the constitution of the State of Utah nor is it
empowered or authorized to determine the legality or constitutionality of
legislative enactments.(See Shea vs
Utah State Tax Commission 120 Pacific Second 274, 275 Utah 1941; State Tax
Commission vs Wriqht 596 Pacific Second 634, 636 (Utah 1979); and Belco
Petroleum CorPoration vs State Board of Equalization 587 Pacific Second 204
(Wyoming, 1978).)

DECISION AND
ORDER

The Petitioner has raised five issues
in this matter.They are:

1.Whether or not the evidence should be suppressed due to an
unconstitutional search and seizure.

2.Whether there is sufficient evidence that would indicate that the
illegal drugs were in the possession of the petitioner.

4.Whether the Petitioner's equal protection rights have been violated.

5.Whether or not there has been a violation of the Petitioner's due
process.

The Tax Commission, in reviewing the
evidence and arguments at the hearing, shall divide the issues raised by the
Petitioner into those of substantive and constitutional questions.The constitutional questions involve the
suppression under an unconstitutional search and seizure, and the equal
protection and due process arguments.The substantive issues are those relating to possession and statutory
construction as it relates to definition of dose or dosage unit.However, the two issues overlap somewhat on
the definition of dosage unit in that the Petitioner argues that the term is
sufficiently vague as to render the application of the statute either
discriminatory or void for vagueness.

As to the constitution issues, the Tax
Commission is an administrative body established for the administration and the
overseeing of the taxing statutes.As
such, the Tax Commission has no authority to determine the constitutionality of
a state statute.The state statute in
all cases before the State Tax Commission is presumed to be constitutional and
therefore correct. Therefore, the arguments as it relates to constitutionality
cannot be determined by the Tax Commission and are therefore denied.

The argument that the stop and search
was an unconstitutional search and seizure suffers from the same problem in
that the Tax Commission has no authority to rule upon the constitutionality of
such conduct.However, the Tax
Commission notes that it appears that the search was not a discretionary
search. Every vehicle was stopped.It
also appears that there are standards and guidelines published by the XXXXX
County Sheriff's office that govern such roadblock type searches.

The Tax Commission further finds that
the arguments of the Petitioner relating to equal protection and due process
also relate to a determination by the Commission as to whether or not the
statute is unconstitutional or void for vagueness.These determinations cannot be made by the Tax Commission.However, the Tax Commission notes that the
statute on its face is clear and does not leave the matter of determination
open which would make the statute void.

The Tax Commission finds that the
testimony was clear and convincing that a dosage unit under the terms of the
statute is one pill.

The Tax Commission now turns to the
substantive issues before it. Those substantive issues relate to the elements
of tax offense or the need for a tax to be paid upon the illegal drugs.The statute requires that a tax be imposed
upon an illegal controlled substance which is not sold by weight of $$$$$ for
every XXXXX dosage units.To be
responsible for the payment of that tax, a person must acquire or possess in
any manner XXXXX or more grams of any controlled substance or XXXXX or more
dosage units of any controlled substance which is not sold by weight.The Tax Commission finds that there is
sufficient evidence before it to find that the Petitioner had acquired "in
any manner" or possessed XXXXX or more dosage units of any controlled
substance which is not sold by weight.

It was stipulated that the controlled
substance did not have affixed to it the tax stamps which evidence payment of
the taxes required by the Utah Code Ann. ' 59‑19‑101
et. seq.

The Petitioner argues that the
controlled substance which is the subject of this matter really is in all
actuality sold by weight and therefore the tax is substantially less on the
controlled substances than that as imposed by the Respondent.The Petitioner finds that this argument
fails.The evidence was clear that the
controlled substance was in pill form.In pill form, it is sold by pill and not by weight.

Therefore, it is the decision of the
Utah State Tax Commission, that the Petitioner's request be denied.Specifically, the search and seizure which
resulted in the obtaining of the controlled substances was not
unconstitutional. Further, there is sufficient evidence to indicate that the
Petitioner did have in his possession or in some manner acquired the controlled
substance.Finally, that the term
dosage unit used in the statute means one pill.Finally, the Tax Commission finds that the Petitioner's arguments
as it relates to equal protection and violation of due process are denied.